Majid Khan Arraignment #4

Benjamin Wittes, Lawfare Staff
Wednesday, February 29, 2012, 1:09 PM
Judge Pohl then turns to his required colloquy with Khan to verify that his plea is truthful, voluntary, and made cognizant of consequences. Khan’s plea, he says, will not be accepted unless he validates every act alleged and unless Judge Pohl is convinced that Khan is, in fact, guilty under U.S. law.

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Judge Pohl then turns to his required colloquy with Khan to verify that his plea is truthful, voluntary, and made cognizant of consequences. Khan’s plea, he says, will not be accepted unless he validates every act alleged and unless Judge Pohl is convinced that Khan is, in fact, guilty under U.S. law. He explains Khan’s rights at length--and Khan waives his rights to trial. Trial counsel Sullivan then puts Khan under oath. Rather than give a blow-by-blow of a session that was quite repetitive, I’m going to describe what was discussed at a certain level of altitude--granular enough, I hope, to give a sense of the military commission procedure but not so in the weeds as to get bogged down in some very detailed back and forth. Judge Pohl first verifies with Khan that he signed the stipulation of fact, that he read and discussed it with his attorneys before doing so, and that he understood it all. Khan’s initial answer to this last question--”pretty much”--doesn’t satisfy him, and Judge Pohl makes sure that there’s no daylight between “pretty much” and everything. He points out there are 112 numbered paragraphs and one introductory paragraph in the stipulation, and he asks whether Khan reviewed them all with counsel--which he says he did. He clarifies with Khan that he’s voluntarily entering into the agreement and regards it as in his best interest (“No doubt, sir.”), that there is no part of the document to which he does not want to consent, and that nobody is forcing him enter into the stipulation. He verifies that Khan understands that it will be used as a basis both for the plea and for the jury's deliberations at sentencing and that he understands that stipulated facts cannot normally be contradicted. Khan says he understands and doesn’t want to contradict it. Judge Pohl then walks him at some length through each of the five charges to which he has pled guilty. For each--conspiracy, murder in violation of the laws of war, attempted murder in violation of the laws of war, material support for terrorism, and spying--he explains the elements of the offense, asks Khan whether he has read the specification of the charge against him, and asks him whether he accepts that the charges are either true or could be proven beyond a reasonable doubt. Khan has a bit of trouble with the law of conspiracy on a few points. He notes that he had no individual relationship with Osama Bin Laden (whom he calls “Sheikh” Bin Laden), but accepts that he was part of an agreement as described by the stipulation. He says he voluntarily delivered the money but didn’t know where it was going. Judge Pohl pushes: When you joined the conspiracy, did you agree to participate in a conspiracy to commit murder, material support, and spying--even if you did not know how exactly when and how these things would be carried out? This, Judge Pohl says, is critical to the plea. Did you agree to do those things even though you may not have known exactly how they would be carried out. After a break and consultation with his lawyers and a fair bit more back and forth, Khan says that there was never an oath or a formal joining. But he did start doing things for the group in January of 2002 and continued doing so until March of 2003, when he was captured. I volunteered for all of those three things that you mentioned, he says. With or without an oath, Judge Pohl asks, there was an agreement to do these things? Khan affirms that there was. Khan also stumbles a bit when Judge Pohl asks him whether he withdrew from the conspiracy after he was captured in March of 2003--which is pivotal, since the Marriott bombing to which he is pleading guilty did not take place until months later. Khan notes that he didn’t withdraw. A person, he says, cannot possibly withdraw while held in secret custody--even if he wants to change his mind (which, he emphasizes, he is not saying that he did). But you were still part of the conspiracy in August of 2003, when the Jakarta bombing happened? Khan says he was. The other charges all go more smoothly. Judge Pohl walks Khan through the elements and the law of each charge, and Khan affirms that the facts support the charges. Do you agree that the stipulation of facts accurately reflects these charges, Judge Pohl asks him at the end? “To the best of my knowledge, sir,” he responds. Both prosecution and defense counsel agree. Judge Pohl then verifies that Khan understands that the maximum penalty for these offenses is confinment for life and a fine--and he turns to the terms of the PTA. He verifies that Khan signed both it and the appendix, that his lawyers explained the documents, and that Khan read and understood them. He verifies that nobody forced Khan to enter into the agreement and that the agreement represents the only understanding between Khan and the government. He verifies further that Khan understands that sentencing in his case is going to be delayed for four years from today, but that any period of confinement imposed then will begin today. The result is that he will get four years off of whatever the ultimate sentence approved by the Convening Authority turns out to be at that time. He then walks Khan through the terms of his sentencing--a matter about which there has been some confusion in prior press coverage: The Convening Authority has promised that the approved sentence will not exceed 25 years, he notes. But the agreement also says that assuming Khan provides full and truthful cooperation and substantial assistance, the Convening Authority will approve no sentence exceeding 19 years--which counts from today, not from the date of sentencing four years from now. Both sides, and Khan, agree to this, though Sullivan clarifies that the 19 year limit will only apply if Khan cooperates. Judge Pohl verifies that Khan waives his appeals rights and gives up the right to collaterally attack his conviction. He also verifies that Khan understands that under the PTA, he can’t litigate or challenge the circumstances of his capture or detention--except that after he has served his approved sentence, he retains the right to challenge any continued detention through habeas. Khan says he understands that he can’t sue the CIA for what happened in the past and that the government can still hold him after he does his time--that this agreement does not guarantee that he will ever go free. “I’m making a leap of faith here, sir,” he says. Judge Pohl also clarifies that Khan has agreed to seek dismissal of his pending habeas petition without prejudice. At this point, the audio gets blocked, presumably because Khan has mentioned his CIA detention. When it comes on again, Judge Pohl instructs him not to discuss any individual agency of government--whereupon the feed briefly goes out again. When it returns, Judge Pohl asks Khan whether he agrees to join the government in the request for a four year sentencing delay. He does and waives any speedy trial rights. He also affirms that he has agreed not to offer live testimony of any Guantanamo detainees at his sentencing hearing, when it does take place. He agrees that the agreement is binding and that the government could prove him guilty. And he once again waives the right to trial and the right against self-incrimination and affirms that he is satisfied with his representation. He affirms again that he has been fully advised of the charges against him and the legal effects of his plea and that he understands that he can withdraw his plea at any time before his sentence is announce but would then lose the benefits of his plea agreement. After going over a few other matters and reiterating--and receiving Khan's assurance--on several questions related to the voluntariness of the plea, Judge Pohl accepts the plea and finds Khan guilty.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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